02-003914 Zamia Corporation, D/B/A Landscaper`s Choice vs. Sergmar, Inc. And Hartford Fire Insurance Company Status: Closed Recommended Order on Friday, February 7, 2003.

Summary: Respondent satisfied order entered pursuant to Producer Complaint; Petitioner therefore may not make claim against Respondent`s bond for remainder of balance owed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZAMIA CORPORATION, d/b/a )

LANDSCAPER'S CHOICE, )

)

Petitioner, )

)

vs. ) Ca se No. 02 - 3914

)

SERGMAR, INC. AND HARTFORD FIRE )

INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

A formal hearing was held pursuant to notice in the

above - styled case by Lawrence P. Stevenson, assigned

Administrative Law Judge of the Division of Administrative

Hearings, on January 6, 2003, in Naples, Florida.

APPEARANCES

For Petitioner: Ronald L. Torp, Jr., President

Zamia Corporation

218 Sabal Palm Road

Naples, Florida 34114

For Respondent: Marian Birsa, Agent

Sergmar, Inc. Sergmar, Inc.

2881 Santa Barbara Boulevard

Naples, Florida 34116

For Respondent

Hartford Fire

Insurance Company: No Appearance

STATEMENT OF THE ISSUES

Whether Respondent, Sergmar, Inc., owes Petitioner, Zamia

Corporation, d/b/a Landscaper's Choice, $674.07 for the sale of

landscaping pla nts.

PRELIMINARY STATEMENT

On June 24, 2002, Petitioner filed a Producer Complaint

with the Department of Agriculture and Consumer Services (the

"Department") alleging that Sergmar, Inc. ("Sergmar"), had

failed to pay twelve invoices for various landscap ing plants for

an adjusted total of $6,182.23. The Department notified Sergmar

and its bond surety, Hartford Fire Insurance Company, of the

Producer Complaint by separate letters dated July 5, 2002. On

or about July 25, 2002, Sergmar filed an Answer admi tting the

debt and requesting 60 days to collect other outstanding

invoices and settle the balance. By letter dated August 1,

2002, Petitioner notified the Department that it had entered a

proposed settlement plan with Sergmar and that it agreed with

Serg mar's request to abate the proceeding. On August 2, 2002,

the Department placed the case in abeyance to provide the

parties an opportunity to settle the issue.

By letter dated August 21, 2002, Petitioner notified the

Department that it had received no mon ey from Sergmar pursuant

to the settlement plan, and that it wished to resume processing

of its Producer Complaint. By order dated September 12, 2002,

the Department ordered Sergmar to pay Petitioner the amount of

$6,182.23 within 15 days of the date the order became final.

By letter faxed on September 13, 2002, Petitioner notified

the Department that Sergmar had made a partial payment, but that

an open balance of $635.30 remained to be paid. Petitioner

requested that the Producer Complaint be reinstated for the

amount still due and owing. By letter dated September 24, 2002,

Sergmar disputed the allegation that it owed any more money to

Petitioner.

Because of the factual dispute, the Department forwarded

the case to the Division of Administrative Hear ings ("DOAH") on

October 7, 2002. The case was noticed for hearing on

November 22, 2002. On November 12, 2002, Petitioner filed a

motion for continuance, which was granted by Order dated

November 14, 2002. The case was rescheduled for January 6,

2003, when it was heard.

At the hearing, Ronald Torp testified on behalf of

Petitioner, Zamia Corporation. Petitioner's Exhibits 1 and 2

were admitted into evidence. Marian Birsa testified on behalf

of Sergmar, which offered no exhibits. The parties stipulat ed

that the invoices forwarded to DOAH by the Department were

accurate and could be relied upon by the undersigned in

preparing this Recommended Order.

No Transcript of the proceeding was ordered. None of the

parties made post - hearing submissions.

FINDING S OF FACT

1. Petitioner is a producer of agricultural products as

defined by Section 604.15(5), Florida Statutes. Petitioner

operates a landscape supply company that produces plants, among

other landscaping supplies, at a location in Naples, Florida.

2 . Respondent Sergmar is a dealer in agricultural products

as defined by Section 604.15(1), Florida Statutes. At the time

of the transactions in question, Sergmar was licensed as a

dealer in agricultural products supported by a surety bond in

the amount o f $4,999 provided by the Hartford Fire Insurance

Company.

3. Between February 21, 2002, and March 29, 2002,

Petitioner sold Sergmar nursery plants and trees produced by

Petitioner. As of March 29, 2002, the balance owed Petitioner

by Sergmar was $7,49 8.04. As of April 30, 2002, finance charges

had increased the balance to $7,676.01.

4. Sergmar began attempting to pay down the balance in

May and June 2002. Sergmar made one valid payment of $500

during this period. However, other Sergmar checks in p artial

payment of the balance were returned for insufficient funds

three times during this period.

5. On June 24, 2002, Petitioner filed a Producer Complaint

with the Department, seeking an order that Sergmar be directed

to pay an adjusted balance of $6,1 82.23. Petitioner arrived at

the "adjusted balance" by writing off some items and eliminating

finance charges from its claim. As of June 24, 2002, Sergmar

actually owed Petitioner a total balance of $6,997.17.

6. On or about July 25, 2002, Sergmar filed an Answer

admitting the debt. Sergmar's letter stated: "We fully intend

to pay for it. We are trying to collect outstanding invoices.

We request 60 days to settle [the] balance."

7. By letter dated August 1, 2002, Petitioner notified the

Department t hat it had entered a proposed settlement plan with

Sergmar and that it agreed with Sergmar's request to abate the

proceeding. On August 2, 2002, the Department placed the case

in abeyance to provide the parties an opportunity to settle the

issue.

8. By l etter dated August 21, 2002, Petitioner notified

the Department that it had received no money from Sergmar

pursuant to the settlement plan, and that it wished to resume

processing of its Producer Complaint. By order dated

September 12, 2002, the Departme nt ordered Sergmar to pay

Petitioner the amount of $6,182.23 within 15 days of the date

the order became final.

9. While Petitioner's claim was pending, service charges

continued to accumulate on the principal balance. By August 31,

2002, Sergmar owed Petitioner $7,635.30.

10. On September 6, 2002, before the Department entered

its order, Sergmar presented Petitioner with a cashier's check

for $7,000.

11. By letter faxed to the Department on September 17,

2002, Petitioner stated that Sergmar had mad e a partial payment

of the balance but that it still owed $635.30 to Petitioner.

The letter requested that the Department "continue the complaint

for the balance owed."

12. By letter to the Department dated September 24, 2002,

Sergmar objected to the req uest that the claim against its

surety bond remain open. Sergmar admitted that it still owed

$635.30 to Petitioner, and stated that it intended to pay off

that amount over the next two months. However, Sergmar also

noted that Petitioner's Producer Compla int requested $6,182.23

and that Sergmar had paid Petitioner $7,000. Sergmar contended

that the $7,000 payment more than satisfied the amount requested

in the Producer Complaint and that the Department should

therefore close the proceeding against Sergmar 's surety bond.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter pursuant to

Sections 120.57 and 604.21, Florida Statutes .

14. Petitioner introduced testimony and the invoices of

the t ransactions establishing that Sergmar owed Petitioner a

total of $7,635.30 in principal and finance charges. Sergmar

conceded that it owed that amount to Petitioner. The evidence

further established that Sergmar paid Petitioner $7,000 of that

amount, lea ving a balance of $635.30 that both parties agreed

was owed by Sergmar to Petitioner. Finally, the evidence

established that the Producer Complaint invoking the

jurisdiction of the Department requested payment of only

$6,182.23.

15. Section 604.21, Flori da Statutes, provides:

(1) Any person claiming herself or

himself to be damaged by any breach of the

conditions of a bond or certificate of

deposit assignment or agreement given by a

licensed dealer in agricultural products as

hereinbefore provided may enter complaint

thereof against the dealer and against the

surety, if any, to the department, which

complaint shall be a written statement of

the facts constituting the complaint. Such

complaint shall be filed within 6 months

from the date of sale in inst ances involving

direct sales or from the date on which the

agricultural product was received by the

dealer in agricultural products, as agent,

to be sold for the producer. No complaint

shall be filed pursuant to this section

unless the transactions involv ed total at

least $250 and occurred in a single license

year.

(2) Upon the filing of such complaint in

the manner herein provided, the department

shall investigate the matters complained of;

whereupon, if, in the opinion of the

department, the facts co ntained in the

complaint warrant such action, the

department shall send to the dealer in

question, by certified mail, notice of the

filing of the complaint. Such notice shall

be accompanied by a true copy of the

complaint. A copy of such notice and

compl aint shall also be sent to the surety

company, if any, that provided the bond for

the dealer, which surety company shall

become party to the action. Such notice of

the complaint shall inform the dealer of a

reasonable time within which to answer the

compl aint by advising the department in

writing that the allegations in the

complaint are admitted or denied or that the

complaint has been satisfied. Such notice

shall also inform the dealer and the surety,

if any, of a right to a hearing on the

complaint, if requested.

(3) If the dealer admits the allegations

of the complaint but fails to satisfy same

within the time fixed by the department, the

department shall thereupon order payment by

the dealer of the amount found owed.

(4) If the dealer, in her or his answer,

denies the allegations of the complaint and

waives a hearing, the department may order a

hearing or enter an order based on the facts

and circumstances set forth in the complaint

and the respondent's answer thereto. If the

department determ ines the complaint has not

been established, the order shall, among

other things, dismiss the proceedings. If

the department determines that the

allegations of the complaint have been

established, it shall enter its findings of

fact accordingly and thereu pon enter its

order adjudicating the amount of

indebtedness due to be paid by the dealer to

the complainant.

(5) Any order entered by the department

pursuant to this section shall become final

14 days after issue if neither the

department nor a party w hose material

interest is affected by the order requests a

hearing on the order within 14 days

following the date of issue.

(6) Any party whose material interest is

affected by a proceeding pursuant to this

section shall be granted a hearing upon

reque st. Such hearing shall be conducted

pursuant to Chapter 120. The order of the

department, when issued pursuant to the

recommended order of an administrative law

judge, shall be final upon issuance.

(7) Any indebtedness set forth in a

departmental ord er against a dealer shall be

paid by the dealer within 15 days after such

order becomes final.

(8) Upon the failure by a dealer to

comply with an order of the department

directing payment, the department shall, in

instances involving bonds, call upon t he

surety company to pay over to the department

out of the bond posted by the surety for

such dealer or, in instances involving

certificates of deposit, call upon the

financial institution issuing such

certificate to pay over to the department

out of the c ertificate under the conditions

of the assignment or agreement, the amount

called for in the order of the department,

not exceeding the amount of the bond or the

principal of the certificate of deposit. If

the bond or the principal of the certificate

of d eposit is insufficient to pay in full

the amount due each complainant as set forth

in the order of the department, the

department shall distribute the proceeds pro

rata among such complainants. The proceeds

from a bond or the principal from a

certificate of deposit shall be paid

directly to the department to be distributed

by it to successful complainants, except the

accrued interest on a certificate of deposit

shall be paid to the dealer. Such funds

shall be considered trust funds in the hands

of the dep artment for the exclusive purpose

of satisfying duly established complaints.

Payments made to the department pursuant to

this section shall be considered payments

made upon demand and may not be considered

voluntary payments.

(9) Nothing in this secti on may be

construed as relieving a surety company from

responsibility for payment on properly

established complaints against dealers

involved in a federal bankruptcy proceeding

and against whom the department is

prohibited from entering an order.

(10) Upon the failure of a surety company

to comply with a demand for payment of the

proceeds on a bond for a dealer in

agricultural products, a complainant who is

entitled to such proceeds, in total or in

part, may, within a reasonable time, file in

the circui t court a petition or complaint

setting forth the administrative proceeding

before the department and ask for final

order of the court directing the surety

company to pay the bond proceeds to the

department for distribution to the

complainants. If in such suit the

complainant is successful and the court

affirms the demand of the department for

payment, the complainant shall be awarded

all court costs incurred therein and also a

reasonable attorney's fee to be fixed and

collected as part of the costs of the suit.

In lieu of such suit, the department may

enforce its final agency action in the

manner provided in s. 120.69.

16. The evidence established that Sergmar more than

complied with the Department's Order that it pay $6,182.23 to

Petitioner. Having p aid in full the amount claimed in the

Producer Complaint and the Department's order, Sergmar correctly

asserts that the claim has been satisfied for purposes of the

Department's jurisdiction under Section 604.21, Florida

Statutes. Petitioner must look els ewhere to enforce its claim

for the remaining $635.30 concededly owed to it by Sergmar.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Department of Agriculture and Consumer

Services enter its final order finding that Respondent, Sergmar,

Inc. has satisfied the Department's Order, dated September 12,

2002, that it pay $6,182.23 to Zamia Corporation, d/b/a

Landscaper's Choice, and that no further action on the Producer

Complaint filed by Zamia Co rporation is necessary.

DONE AND ENTERED this 7th day of February, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildin g

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of February, 2003.

COPIES FURNISHED :

Sergio Birsa, Director

Sergmar, Inc.

2881 Santa Barbara Boulevard

Naples, Florida 34116

Marian Birsa, Agent

Sergmar, Inc.

2881 Santa Barbara Boulevard

Naples, Florida 34116

Brenda D. Hyatt, Bureau Chief

Bureau of License and Bond

Department of Agricult ure

407 South Calhoun Street, Mail Station 38

Mayo Building

Tallahassee, Florida 32399 - 0800

Richard Ditschler, General Counsel

Department of Agriculture

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

Charles Minor, Registered Agent

H artford Fire Insurance Company

Hartford Plaza

Hartford, Connecticut 06115

Ronald L. Torp, Jr., President

Zamia Corporation

218 Sabal Palm Road

Naples, Florida 34114

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exc eptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.